State vs Jayaseelan

R. Baiasubramanian, J.—The State is before this Court challenging the correctness of the judgment dated 25.8.92 in S.C. No. 84/92 on the file of the Court of Sessions at Madurai acquitting the first accused in that sessions case in respect of the offence punishable u/s 302 read with Section 34 I.P.C. In fact, two accused were tried in that sessions case (A1 is the son of A2) A2 was also acquitted. The State had filed the appeal questioning the acquittal of both the accused. But however when leave was granted by this Court to the State, leave was restricted by order dated 10.02.94 only with reference to A1. Therefore we are now called upon to decide in this appeal the correctness of the judgment under challenge so far as it relates to the acquittal of A1 alone. Heard the learned Counsel on either side.

The prosecution case, in short, is as follows:

a) P.W.1 is residing at Paloothu. The deceased in this case by name Murugan is his sister''s son. P.W.2 is the younger brother of the deceased. The deceased was also residing in the same place. P.W.1 knows the accused. A1 is the son of A2 and they are also residents of the same place. The occurrence had taken place on 15.01.90 around 5.00 p.m. It was a festival day (the day following the festival of Pongal, which was on 14.01.90). On that day, P.W.1 went by the side of the house of one Chellappa Thevan and he was standing there for some time. The house of Chellappa Thevan is in the middle street of the said village. The deceased was coming from north to south in that road bringing his two bulls. As already stated, on the day in question, the festival related to washing the bulls; decorating them, painting the horns and then after garland-ing the same, they would be taken around the town in a joyous manner. A2 was coining behind the deceased with a stick in his hand. He was just swinging the stick around his body. A1 was proceeding from south to north in the same road and he was armed with a knife. With that knife, he stabbed on the left side chest of the deceased and ran towards south. The victim tumbled on his feet in the street. On seeing this, P. Ws.1 and 2 ran towards him and gave their hand of support. One other person by name Chinnasamy also witnessed the occurrence and he gave a hot chase to A1. The injured, who by then had lost his consciousness, was put on a cart and taken to the private hospital of one Anbalagan by P. Ws.1 and 2. But the Doctor was not avilable there and Murugan breathed his last outside the hospital itself while he was in the cart. Immediately P. Ws.1 and 2 reached the police station, taking the dead body in that cart. P.W.6 was the Sub-Inspector of Police in the police station during the relevant time, before whom, P.W.1. gave the complaint. Ex.P.1. is that complaint attested by P.W.2 and one Chinnasamy, who accompanied them. There was an earlier incident regarding the construction of a house between A2 and the father of the deceased. During the occurrence in the present case, the shirt and dhoti of P.W.1 became blood stained and the shirt of P.W.2 also became blood stained. The personal wearing apparels of P. Ws.1 and 2 were produced at the police station.M. Os.1 and 2 are the shirt and dhoti of P.W.1 and after getting change dress from his house, he surrendered them at the police station. M.O.3 is the weapon of offence in the hands of A1, which he used in inflicting the fatal injury on the deceased. He was examined during inquest by the Investigating Officer. P.W.2 had also given evidence in total corroboration to the oral evidence of P.W.1 on ail material aspects as referred to above. He would state that, M. Os.4 and 5 are his shirt and lungi, which he handed over at the police station, after getting change dress from his house. He was examined during inquest. P.W.3 witnessed the preparation of Ex.P2/observation mahazar as well as the recovery of M. Os.6 and 7 under Ex.P.3 at 7.30 a.m. on 16.01.90.

b) P.W.4 is the Medical Officer, who on receipt of Ex.P.4/requisition for conducting post mortem, did the same on the dead body at 11.30 a.m. on 16.01.90. During post mortem he found various symptoms as found noted in Ex.P.5/post mortem certificate. The Doctor is of the opinion that the deceased would appear to have died due to the stab wound over the vital organ namely, heart about 14 to 18 hours prior to autopsy. The injury noted on the body of the deceased would cause death instantaneously and a weapon like M.O.3 could have caused that injury. The symptoms as found noted in Ex.P.5 are as follows:

External Injuries: An oblique stab wound on the left side of the chest situated 15 cm below the medial 1/3 of the left collar bone and 4 cm away from the midsternal line on the left 5th inter costal space measuring 2 cm x 1 cm x extend into the thoracic cavity. Upper lateral end of the wound is pointed. Lower medial angle of the would is ob-tused. Wound edges are regular and clean. On dissection of the thorax: 100 ml of fluid blood present on both sides of the pleural cavity wound is directed medially, posteriorly and downwards piercing the under lying muscles, pericardium and thro'' and thro'' on right ventricle upto the pericardium on posterior side to a length of about 5 cm. Fracture of left 5th rib corresponding to the external injury.

Internal examination: Opening of thorax and obdomen:

Pleural cavity contains 1000 ml of fluid blood.

Peritoneal cavity - empty. Lungs - cut section pale. Heart - muscles and valves normal. Injury - (see injury column). Hyoid bond - intact. Stomach- contains 100 ml of coffee coloured fluid. No specific smell. Mucosa - pale. Liver, Kidney, Spleen -Normal in size cut section pale. Small intestine- 20 ml of bile stained fluid present. Opening of head - no skull bone fracture. Brain - Normal in size cut section pale.

P.W.5 is the police constable attached to the investigating police station. At 2.30 p.m. on 16.01.90, on receipt of the requisition from the Investigating Officer for conducting post mortem, he carried the same along with the dead body to the hospital. After post mortem, he recovered M. Os.8 to 11 from the body and handed over the same at the police station. He also handed over the dead body to the relatives. P.W.6 is the Sub-Inspector of Police in the investigating police station during the relevant time. At 7.40 p.m. on 15.01.90 when he was in the police station.P.W.1 appeared before him and gave a written complaint, which was registered by him as Ex.P.1 in Crime No. 18/90 for the offence punishable u/s 302 I.P.C. Ex.P.6 is the printed FIR. He sent the material records to the court as well as to the higher officials. AT 11.15 p.m. on that night, he handed over the material records to the Investigating officer and assisted him during investigation. P.W.7/Investigating Officer on receipt of the information about the occurrence in question, went to the scene at 10.00 p.m. on 15.01.90; after arranging for security there, he reached the investigating police station at 11.15 p.m. and collected the material records from P.W.6/Sub-Insepctor of Police. He took up investigation in this case immediately thereafter. The dead body was kept opposite to the police station and accordingly he did inquest over the body from 11.30 p.m. on that night till 2.30 a.m. on the next day morning. Ex.P.7 is the inquest report. He examined P.W.1. 2 and others and recorded their statements. He gave Ex.P.4/requisition for post moretem and sent it along with the dead body through a police constable. He recovered M. Os.1, 2,4 and 5 from P. Ws.1 and 2 respectively in the police station. Both the accused surrendered at the police station at 5.00 a.m. on 16.01.90 and accordingly they were arrested. A1 produced M.O.3, which was recovered under Form 91. The accused were given change dress and M. Os.12 to 15 were recovered from them. Since A1 is stated to ahve sustained an injury in an incident that took place two days prior to his arrest, he was sent to the hospital with a police memo. The accused was sent for judicial remand at 7.15 a.m. on 16.01.90. In the presence of P.W.3. P.W.7 prepared Exs.P.2 and P.8. the observation mahazar and rought sketch respectively He also recovered from the scene of occurrence M. Os.6 and 7 under Ex.P.3. He examined further witnesses and recorded their statements. He gave Ex.P.9/requisition to the court to send the case properties to the laboratory for examination. Accordingly as an enclosure to Ex.P.10/court''s letter, the case properties were sent to the laboratory for test. Exs.P.11 and P. 12 are the chemical examiner''s report and serologisl''s report respectively. After completing the investigation, the Investigating Officer filed the final report against the accused in court on 01.04.90 for the offence referred to earlier.

c)When the accused were questioned u/s 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against them, they denied each and every circumsance put up against them as false and contrary to facts. One witness was examined on their side as D.W.1. His evidence in substance shows the following:

He was the Head Constable in the investigating police station on 15.01.90 and 16.01.90. P.W.6 was the Sub-Inspector of Police during the relevant time; whenever the Sub-Inspector leaves the police station, he hands over charge to the Head Constable, if the Head Constable is not available, then charge would be given to any other police constable available in the police station; at 10.00 p.m. on 15.01.90 P.M.6. along with his party, left, the police station to the scene of occurrence village in respect of Crime Nos. 18/90 and 19/90. after making the necessary entry in the general diary; it is mentioned in the general diary that the charge of the police station was given to Head Constable 181; accordingly he took charge at that time; it is also mentioned in the general diary that P.W.6 returned to the police station only at 4.45 a.m. on 16.01.90 from the scene of occurrence village, after assisting the Investigating Officer; from 10.00 p.m. on 15.01.90 till 4.30 a.m. on the following morning, when he was in charge of the police station, no entry was made in the general diary of the police station that the Investigating Officer had come to the police station during that time; the roll call was taken at 7.00 a.m. on 16.01.90 and the Sub-Inspctor of Police assigned duty to various constables, as reflected in the general diary; at 8.00 a.m. on 16.01.90. P.W.6 went to the scene of occurrence village in connection with Crime No. 18/90. after making the necessary entry in the general diary; the general diary contains an entry that he/D.W.1 took charge at 8.00 a.m; Ex.D.1 is page No. 57 of the general diary and it contains the entries in respect of tilings that happened between 7.00 a.m. and 8.00 a.m. on 16.01.90; the entry made on the previous night at 10.00 p.m. is at page No. 55 and it is Ex.D.2; Ex.D.3 is the entry timed at 4.45 a.m on 16.01.90, which is at page No. 56 of the general diary

Exs.D.1 to D5 arc the documentary evidence marked on the side of the defence.

Learned Governemnt Advocate appearing for the State would contend that the reasons given by the learned sessions Judge for acquiting A1 arc totally preverse and opposed to the records and therefore the judgment under challenge cannot be sustained. Assuring that there are some short-comings in the investigation done by the Investigating Agency, even then such short-comings would not have the effect of affecting the entire evidence of P. Ws.1 and 2, if their evidence is otherwise found trustowrthy. Learned Governemnt Advocate, by taking us through the evieence of P. Ws.1 and 2, who are examined as eye witnesses to the occurrence, contended that their evidence had definitely passed the test of reliability and trustworthiness, though they are related to the deceased. He would further contend that the learned sessions Judge had rejected the evidence of P. Ws.1 and 2 on wholly unsustainable reasons. Though there is some reference in the evidence of P.W.6 that another complaint was registered in Crime No. 19/90 and the police had gone for investigating that complaint, yet there is absolutely no material on record for this Court to even infer that the complaint in the above referred to crime has anything to do with the case on hand. Therefore the learned Govememnt Advocate would contend that on the whole, the judgment of the learned sessions Judge cannot be justified in interfering with the said judgment by exercising the powers of the appellate court. Mr. K.V. Sridharan learned Counsel appearing for the Respondent, by taking us through the judgment under challenge, contended that the reasons given by the learned sessions Judge for acquitting the accused cannot be said to be either perverse or as reasons, which cannot be arrived at on the materials available on record. The learned Counsel, by reminding us the powers of this Court while hearing an appeal against acquittal, invited us not to arrive at a different conclusion than the one arrived at by the learned sessions Judge in the judgment under challenge. In addition to the reasons given by the learned sessions Judge for acquitting the accused, the learned counsl also pressed the following points to sustain the judgment under challenge:

a) There is an inordinate delay in lodging the complaint with the police;

b) there are materials to show that the complaint was prepared after deliberations and discussions;

c) there is delay in sending the material records to the court;

d) A1 had an injury and that had not been explained by the prosecution which affects their case in toto;

On these grounds, the learned Counsel for the Respondent would submit that this Court would be in a position to sustain the judgment under challenge.

What are the powers of the appellate court while hearing an appeal against acquittal, are too well defined by a catena of judgments of the Apex Court as well as this Court. Once again, to refresh, our memory, we reiterate the powers of the appellate court while hearing an appeal against acquittal and they are as follows:

If two views are possible on the same set of evidence and if the learned trial Judge had taken one view in favour of the accused, then simply because the appellate court can take a different view than the one arrived at by the learned trial Judge, it would be impermissible for the appellate court to take a different view and interfere with the judgemnt under challenge. Unless the judgment under challenge is perverse, the appellate court would not interfere. If there are other good reasons for acquittal, which has not entered into the mind of the learned trial Judge who acquitted the accused, then on those reasons this Court can sustain the judgment of acquittal. Unless the materials placed by the prosecution unerringly point out only to the guilt of the accused, this Court will not interfere.

Having these broad principles in our mind, first we state hereunder the reasons given by the learned sessions Judge in the judgment under challenge for acquitting the accused. The reasons are as follows:

1) The name of A2 is not in the F.I.R;

2) Ex.P.7/inquest report does not implicate A2 in the crime in question in any manner (the judgment under challenge records that the Public Prosecutor, who appeared for State before the trial court conceded that they have no case against A2);

3) P. Ws.1 and 2 are interested witnesses:

4) since the evidence of P. Ws.1 and 2 is disbelieved with reference to A2, their evidence is open to a serious doubt with reference to the involvement of A1 alsi;

5) the complaint in Crime No. 18/90 (sessions case) and the complaint in Crime No. 19/90 are case and counter and the complaint in the counter case had not been exhibited, which had denied the opportunity to the learned trial Judge to appreciate the entire issue in controversy;

6) P.W.7"s evidence shows that inquest was done over the dead body opposite to the police station itself between 11.30 p.m. on 15.01.90 and 2.30 a.m. on 16.01.90;

7) D.W.1"s evidence falsefies this inquest, since the general diary does not show the presence of the Investigating Officer in the police station during that time;

8) besides the evidence of D.W.1, Exs.D.1 to D3 also create a serious doubt as to the time and manner in which the inquest could have been done and the preparation of Ex.P.7;

9) the general diary shows that P.W.6/Sub-Inspector of Police left the police station at 10.00 p.m. on 15.01.90 and returned to the police station only at 4.45 a.m. on the following morning; but however, Ex.P.7 contains his signature and if P.W.6 was not in the police station, how he could have signed in Ex.P.7, which was prepared between 11.30 p.m. on 15.01.90 and 2.30 a.m. on 16.01.90;

10) the defence evidence and exhibits show that P.W.6 returned to the police station only at 8.00 a.m. on 16.01.90, while Ex.P.2 attested by him shows the time as 7.30 a.m;

11) P.W.2"s evidence shows that the deceased had taken sumptuous non-vegetarian food at 4.30 p.m. on 15.01.90 the occurrence is shown to have taken place at 5.00 p.m.; the medical evidence shows no food particles in the stomach of the deceased and therefore the time of occurrence is doubtfull;

12) there is a serious doubt as to whether P.W.1 is the author of the contents of Ex.P.1

13) Exs.P.2 and P.8 do not show the house of P. Ws.1 and 2 any where near the scene; and

14) independent witnesses have not been examined.

Before going into the sustainability or otherwise of the reasons referred to above and given by the learned sessions Judge for acquitting the accused, we applied our mind to the materials available on record to find out whether the prosecution had established their case beyond all reasonable doubts P. Ws.1 and 2 are examined as eye witnesses to the occurrence. The deceased is the elder sister''s son of P.W.1 and P.W.2 is his younger brother.P. Ws.1 and 2 have been examined in this case as eye witnesses to the occurrence. In fact, the prosecution, bedises examining P. Ws.1 and 2,had examined only five more witnesses as P. Ws.3 to 7 before the court below. P.W.3 speaks about the preparation of Ex.P.2/ma-ha/.ar and recovery of M. Os.6 and 7 under Ex.P.3, P.W.4 is the Doctor, who did post mortem on the body of the deceased. P.W.5 is the police constable, who accompanied the dead body to the hospital for post mortem. He also recovered M. Os.8 to 11 from the dead body after post mortem. P.W.6 is the Sub-Inspector of Police, who registered the complaint given by P.W.1. Therefore there cannot be any difficulty at all in concluding that the entire case of the prosecution rests only on the oral evidence of P. Ws.1 and 2. The occurrence had taken place at 5.00 p.m. on 15.01.90. Ex.P.1 is the complaint given by P.W.1 before the Sub- Inspector of Police and it was registered at 7.30 p.m. on the same day. The police station is at a distance of 2 kms from the scene. We perused Ex.P.1, fully realising that it is not substantive evidence by itself, to find out what is the version of the prosecution at the earliest point of time. In substance Ex.P.1 shows that "P. Ws.1 and 2 were in the road where the occurrence took place, at that time A2 was coming swinging a stick around him. followed by his son/A1; the deceased was also in the road, fearing that swinging of the stick by A2 may hurt him. he bent himself down and moved to the side; A1, who was also in the road, removed the weapon of offence from his hip and stabbed Murugan on his left side chest and immediately the victim fell down.

In the context of the averments found contained in Ex.P.1, we perused the oral evidence of P. Ws.1 and 2. In Ex.P.1 it is stated that A1 was following A2 on the road, which means that both of them were proceeding in the same direction. But however in the oral evidence of P. Ws.1 and 2, we find a different version namely, A2 was proceeding from north to south swinging a stick and banging it on the road; the deceased was going ahead of him and A2 was coming from south towards north. This discrepancy about the directions in which both the accused were going at that time as referred to above, in our considered opinion, will not and shall not affect the substratum of the prosecution case, if it is otherwise found to be trustworthy. Consistently both the witnesses say that, on the deceased bending himself down to escape any injury at the hands of A2, who was swinging the stick, A1 stabbed him and thereafter he ran away. We have gone through the entire evidence of these two witnesses, both in chief and in cross and not even a single circumstance had been elicited in the cross examination of these two witnesses, which would render their evidence in chief unreliable either in whole or in part. In other words, the evidence of P. Ws.1 and 2 regarding the occurrence proper is cogent, convincing and consistent throughout. It may be true that the complaint itself had come to be lodged only around 7.30 p.m. on 15.01.90. The occurrence had taken place at 5.00 p.m. on that day. The evidence placed by the prosecution is that, immediately after the victim received the injuries, the injured was tkaen in a cart to the private hospital of one Anbalagan situated at Kadamalaikundu and the Doctor was not available. Outside the hospital in the cart itself, Murugan/injured breathed his last. Therefore when the anxiety of the witnesses is to give treatment to the injured at the earliest point of time, we see no reason at all to suspect their conduct of taking the injured to the hospital on a priority basis without going to the police station The police station is also at Kadamalaikundu. As already noticed, the police station is at a distance of 2 kms. Therefore it is possible to visualise that to travel by a cart from the scene to reach the hospital would have definitely taken some time. There is no evidence to show as to what is the distance between the clinic of the private medical practitioner and the police station. Therefore taking an over all view of the circumstances referrred to above, we are of the considered opinion that the complaint had been given in the quickest possible time before the police and the material records themselves are shown to have reached the court within fifteen minutes after the mid-night of 15.01.90.

Having in mind that we are hearing an appeal against acquittal, we applied our mind again and again to the oral evidence of P. Ws.1 and 2 regarding the occurrence proper to find out whether there is any semblance of doubt, which would enable this Court to disbelieve their evidence. Despite a thorough search and careful scrutiny of the evidence of these two witnesses, we have failed in our attempt to find any material in favour of the accused. In other words, the evidence of P. Ws.1 and 2 is crystal clear about the manner in which the deceased came to be attacked. To put it other way, it is impossible to disbelieve the evidence of P. Ws.1 and 2 before court. The prosecution by examining P.W.4/Doctor and by exhibiting. Ex.P.5/post mortem certificate, had established beyond doubt that the deceased died due to homicidal violence and the injury found on the body of the deceased would cause death necessarily. In the face of our conclusion about the prosecution having succeeded in estsblishng the guilt of the accused beyond all reasonable doubt, we applied our mind to find out whether it is possible to arrive at any other conclusion than the one arrived at by the learned sessions Judge in favour of the accused and we state once again that we have failed in our attempt. From the evidence available on record, there is no scope to arrive at any other conclusion than the conclusion of guilt of the accused alone. Having held so and in the light of our discussions as referred to above, we applied our mind to the sustainablity or otherise of the reasons given by the learned sessions Judge for a acquitting the accused.

It is no doubt true that in the F.I.R., A2, who was put up for trial, is not arrayed as one of the two accused. On going through the averments contained in Ex.P.1, we find that no overt act is attributed to A2 vis-a-vis the deceased. At best the complaint shows that A2 was coming on the road swinging a stick around his body and at times banging it on the road. There is no material in Ex.P.1 even to infer that A2 wanted to attack the deceased. Therefore, the Investigating Agency, in our considered opinion, had done the right thing in not showing A2 as the accused in the printed F.I.R. But what made them later on to implicate A2 also and put him for trial is not very clear form the records and probably from the 161 statement of P. Ws.1 and 2, A2 also must have been put up for trial. Even from the evidence of P. Ws.1 and 2, we do not find that they have implicated A2 with any particular overt act vis-a-vis the deceased. Therefore the non-mentioning of the name of A2 in the printed F.I.R. cannot be taken as a ground to disbelieve the case of the prosecution even against A1, against whom, we have held that there are overwhelming materials. It may be noticed here that the judgment under challenge records that the Public Prosecutor before the learned sessions Judge conceded that the State has no case at all against A2. That being the factual position, the inquest report marked as Ex.P.7, not disclosing any incriminating material against A2, is again in the fitness of things cannot be taken to decide the case in favour of A1 also. We are fully aware that the evidence of interested witnesses must be analysed with utmost care and caution. We are also fully aware about the position in law that the evidence of eye witnesses, shall not be discarded on the sole ground of interestedness, if their evidence is found to be otherwise trustworthy. Therefore the first three reasons given by the learned sessions Judge and referred to above by us for acquitting A1 are not reasons, which can be sustained in law.

We next go on to the fourth reason extracted above. The acquittal of A2 on the facts noticed earlier namely, absence of any overt act to A2 in Ex.P.1 as well as in the evidence of P. Ws.1 and 2 before court, would only mean that A2 is entitled to the benefit of doubt. But none-the-less, the evidence of P. Ws.1 and 2 is clinching as far as the involvement of A1 is concerned. We find from the materials available on record that P. Ws.1 and 2 had not given any evidence before court against A2, which can be considered as an improvement, when compared to Ex.P.1. In other words, the oral evidence of P. Ws.1 and 2 before court and the averments contained in Ex.P.1, so far as it relates to the involvement of A2, is consistent throughout and therefore the acquittal of A2, disbelieving the oral evidence of P. Ws.1 and 2, cannot and would not necessarily mean that their evidence must be disbelieved against A1 also, which is otherwise consistent and cogent throughout. Going on to the next reason given by the learned sessions Judge, we find that there is some reference to the complaint registered in Crime No. 19/90. In this context, we find that P.W.6 had admitted about the registering of the complaint in Crime No. 19/90 and the complaint in Crime Nos. 18/90 and 19/90 are case and counter. D.W.I had also deposed that P.W.6 left the police station on 15.01.90 in connection with Crime Nos. 18/90 and 19/90. Except getting this information from the mouth of P.W.6 and D.W. 1, the defence had not chosen to cross examine any of the eye witnesses regarding the complaint that is shown to have been registered in Crime No. 19/90. There is no evidence as to who is the complainant in Crime No. 19/90. As already stated, at the risk of repetition, we once again reiterate here that the defence had not made any attempt at all to get any more information from the mouth of any of the witnesses or even from the police as to who is the author of the complaint in Crime No. 19/90 and who are the aggressors. In fact we find that, when A1 was questioned u/s 313 of the Code of Criminal Procedure, he had not taken any stand at all based on Crime No. 19/90, except stating that the case against him is false. Under these circumstances we have no doubt in our mind that if there are materials on record to show that there is a case and counter, in which the prosecution party on the one hand and the accused on the other hand have come into conflict with each other, during which time some on one side and some on the othe side had come to be injured, then there would be a compelling necessity for the Investigating Agency to place the records before the court in respect of the counter complaint as well. It may be true that P.W.7/Investigating Officer had stated in his evidence that, as A1 told him that due to an accidental fall, he had sustained injury two days prior to the occurrence, he was sent with a medical memo for treatment. But for the reason already stated namely, the accused having not taken any defence at all on the basis of any occurrence in which the accused sustained an injury, we are of the firm opinion that non-exhibiting the medical records relating to the treatment of A1 would not in any way affect the case of the prosecution, since it is otherwise found trustworthy. Therefore this reason also fails.

We next go to reason Nos. 6 to 9 noted above. Ex.P.7 is the inquest report and P.W.7 is the Investigating Officer, who did inquest. His evidence is that, he did inquest between 11.30 p.m. on 15.01.90 till 2.30 a.m. on 16.01.90. D.W.1''s evidence is that, the general diary of the police station concerned does not show the presence of the Investigating Officer at the police station itself during that time. Inasmuch as the prosecution claims that the inquest was done over the dead body opposite to the police station itself, the absence of entry in the general diary of the police station about the presence of the Investigating Officer in the police station during the time when the inquest was done raises a doubt regarding the time at which it was done. In addition to this, the entry made in the general diary of the police station exhibited in this case and the evidence of D.W.1 show beyond doubt that P.W.6 left the police station at 10.00p.m. on 15.01.90 and returned to the police station only at 4.45 a.m. on 16.01.90. As already stated Ex.P.7, which is stated to have been prepared between 11.30 p.m. on 15.01.90 and 2.30 a.m. on 16.01.90 contains the signature of P.W.6. Therefore the defence had definitely raised some doubts regarding the manner and time at which the inquest is shown to have been done by the prosecution. These may be short- comings of the investigation and these short-comings, in our considered opinion, would not destroy the entire evidence of P. Ws.1 and 2 whose evidence had been accepted by us whole-heartedly without any reservation. On the same line of approach, we also reject reason No. 10 given by the learned sessions Judge. It may be true that Ex.P.2 on the face of it, shows that it was prepared at 7.30 a.m. on 16.01.90 and it contains the signature of P.W.6. But the entry made in the general diary marked on the side of the defence shows that P.W.6 returned to the police station only at 8.00 a.m. on 16.01.90. This is a trivial material, which cannot tilt the scale in favour of the accused. One other reason namely, reason No. 11 given by the learned sessions Judge for acquitting the accused is that absence of food particles in the stomach of the deceased. For this the learned sessions Judge relies upon the oral evidence of P.W.2 who would depose that the deceased had taken non-vegetarian food at 4.30 p.m. on 15.01.90. When the occurrence, according to the prosecution, had taken place at 5.00 p.m. on that day, presence of food particles in the stomach of the deceased would have been noticed by the Doctor. But such evidence is absent. From this solitary materials, we are inclined to doubt the time of occurrence, inasmuch as the complaint itself had come to be lodged before the police at 7.30 p.m. on that day itself and we have found that the time taken by the prosecution to lodge the complaint with the police is well within the reasonable limits. Even otherwise, P.W.2 being a rustic villager as he is, the court would be definitely committing an error in giving full weight to the oral evidence of P.W.2 about the precise time at which the deceased took his food. Even assuming that this may be a relevant circumstance, yet in our considered opinion, it can be a relevant circumstance which can be taken into account only when there are other infirmities in the evidence of the eye witnesses. Inasmuch as we have found that the evidence of the eye witnesses is overwhelming in nature, the circumstance referred to above cannot enter into the mind of the court at all. P.W.2 had given evidence almost two years and seven months after the occurrence took place.

12, The next reason given by the learned sessions Judge that P.W.1 could not be the author of the contents of Ex.P.1, is not supported by any legal material available on record. The only material that was taken into account by the learned sessions Judge to conclude so is that, there is a contradiction in the oral evidence of P.W.1 when compared to the averments contained in Ex.P.1. We have already noted in the earlier portion of this judgment that the only contradiction that could be seen from the averments contained in Ex.P.1, when compared with the oral evidence of P.W.1, is the direction in which the respective accused was proceeding. The learned sessions Judge went on to doubt the case of the prosecution on the ground that Ex.P.2/observation mahazar and Ex.P.8/rought sketch do not show the house of P. Ws.1 and 2 anywhere in the road near the scene. It is not the case of these two witnesses that they have their house there. Their case is that they were in the road on that day, being a festival day, opposite to the house of one Chellapa Thevar. Chellappa Thevar''s house is stated to be in the middle street, where the occurrence took place. Therefore this could be hardly a reason, which can be taken into account to acquit the accused. The last reason given by the learned sessions Judge is that, independent witnesses are not examined. The desirability to examine independent witnesses would depend upon facts of each case. If the evidence of interest witnesses are open to doubt, then the court would, by way of caution, expect independent witnesses to be examined. In this case we have believed the oral evidence of P. Ws.1 and 2 in toto and therefore the failure to examine independent witnesses, has no impact on the case of the prosecution.

We also applied our mind to the additional ground put forward before this Court by the learned Counsel for the Appellant. We have already held that there is no condemnable delay in lodging the complaint with the police. It is true that P.W.2 in this evidence had stated that when P.W.1 lodged the complaint with the police, four or five villagers were by his side; they all decided and then only the report was given. Such gathering of people in the police station when a man in the village is done to death is not unusual. All the persons talking together and giving the report would not necessarily mean that Ex.P.1 contains a fabricated version or a concocted version. We find no material at all to arrive at such a conclusion. Ex.P.1 appeals to us as a true document containing a natural version. We have already held that there is absolutely no delay also in sending the material records to the court. As far as the absence of explanation regarding the injury found on A1, the defence had not brought out any material to even infer that A1 had sustained the injury in the same transaction in which the deceased was done to death. In fact A1 at the time of his arrest had stated before the officer concerned that he had sustained the injury due to an accidental fall two days prior to the occurrence. When P.W.7 had given evidence that A1 told him at the time of his arrest that he had received the injury two days prior to the occurrence due to an accidental fall, the defence had not chosen to cross examine him on that aspect. If that is the position, the argument put forward by the learned Counsel for the Appellant regarding the non-explanation of the injury found on A1, cannot in any way affect the case of the prosecution. In conclusion we hold that the learned sessions Judge had acted contrary to the legal materials available on record and no other conclusion, except the conclusion of guilt of A1 alone can be arrived at on the materials noted earlier.

Since this Court is interfering in an appeal against acquittal a question arises as to whether we should send for the accused and question him on the question of sentence. The accused is found guilty for the offence punishable u/s 302 I.P.C. The sentence that could be imposed on the accused is either a sentence of death or a sentence of life imprisonment. The very idea of questioning the accused on the question of sentence is to enable the court to consider the request of the accused to award a lesser punishment. In fact the Hon''ble Supreme Court of India in the judgment reported in Tarlok Singh Vs. State of Punjab, held as follows:

The object of Section 235(2) is to give a fresh opportunity to the convicted person to bring to the notice of the court such circumstances as may help the court in awarding an appropriate sentence having regard to the personal, social and other circumstances of the case. Of course, when it is a case of conviction u/s 302 I.P.C. if the minimum sentence is imposed, the question of providing an opportunity u/s 235 would not arise.

Failure to give an opportunity u/s 235(2) will not affect the conviction under any circumstances. The only point is relevant to sentence. Even there, in a murder case where the charge of murder is made out, the limited question is as between the two sentences, prescribed under the penal Code.

A similar situation, as in the case on hand before us, arose before this Court in Crl. App. No. 194/87. That was also an appeal against acquittal filed by the State challenging the acquittal of various accused in that sessions case in respect of various offences, which included the offence u/s 302 read with 149 I.P.C. The learned Judges constituting that Division Bench allowed the said appeal setting aside the judgment under challenge; held the accused guilty of the offence punishable u/s 302 read with 149 I.P.C. and convicted the accused. The same question as before us namely, whether the accused should be sent for and be questioned u/s 235(2) of the Code on the question of sentence arose. Following the judgment of the Apex Court referred to supra, this Court held that, since the offence punishable u/s 302 I.P.C. attracts only two punishments namely, death or life imprisonment, if the court is inclined to impose only life imprisonment to the accused, then there would be no need to question the accused on the question of sentence, since there is no scope for the court to award any punishment other than the two referred to earlier. The Division Bench in that case was conscious of the position in law that, if the extreme sentence of death is proposed to be given, then the requirement of Section 235(2) of the Code should be complied with. There is yet another judgment of the Hon''ble Supreme Court of India reported in Nirpal Singh and Others Vs. State of Haryana, wherein it was held as follows:

that in a murder case, where the accused were convicted u/s 302 Penal Code and sentenced to imprisonment for life it was not necessary to remit the case to the trial court for giving an opportunity to accused of being heard on the question of sentence, as they were awarded minimum sentence that could be passed u/s 302 Penal Code.

Under these circumstances, we have no doubt at all in our mind that, since we intend to sentence the accused to undergo life imprisonment, there is no need to question the accused u/s 235(2) of the Code, as he is not going to be prejudiced in any manner by he not being questioned on the question of sentence.

Consequently the judgment under challenge is set aside and the appeal is allowed holding A1 guilty of the offence punishable u/s 302 I.P.C. For the said offence, we sentence him to undergo life imprisonment. The court of sessions concerned is directed to secure A1 and commit him to the person to serve the rest of the imprisonment.